The Uber Files shine spotlight on Irish lobbying regulation

The Uber Files shine a light on the US cab-hailing company’s lobbying of the Irish government and raise questions over submissions by the business and its main Irish lobbyist to the official register of lobbying.

The register is a mandatory log, maintained by the Standards in Public Office Commission (Sipo), that is supposed to provide transparency on who is lobbying whom and about what.

The lobbying company owned by John Moran, a former Department of Finance chief, declared some engagements for Uber with certain ministers, government advisers and Limerick officials. In addition, Uber itself named Moran as its lobbyist in separate logs of communications with different ministers. But other high-level contacts described in the Uber files do not appear on the lobbying register.

[ Full Uber contacts with government not disclosed in lobbying return ]

[ Profile - Irish lobbyist Mark MacGann emerges as Uber whistleblower ]

[ Fine Gael used Uber text in 2016 election manifesto, US firm claimed ]

[ How US multinational Uber tried to squeeze the Irish government ]

Neither is there any mention in the official logs of Uber’s direct engagements with then taoiseach Enda Kenny, which feature in the US company’s private records. Kenny was seen by some in Uber as a political leader who mattered, and potentially influential with his centre-right EU counterparts as the company tried to make inroads in European markets.

John Moran changes his tune on lobbying as he runs for Limerick mayor

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Whistleblower legislation presents a new challenge to crisis management

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Uber Files throw harsh light on lack of transparency in lobbying

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What we learned about lobbying in Ireland from the Uber Files

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By early 2015, Uber had “reached a block” with the National Transport Authority (NTA) over the regulator’s objections to a business model that radically reworked the conventions of the traditional Irish taxi sector. Files show the company wanted government figures to “lean on” regulators in an attempt to overcome resistance to its plans. The company also viewed its regional jobs investment — in Limerick — as an opportunity to exercise “political leverage”. Such activities are firmly in the realm of lobbying, given Uber’s need for legislative and regulatory change to facilitate its business model: a cab-hailing service that allows people who are not licensed as taxi drivers use their private cars as cabs.

The Regulation of Lobbying Act took force in September 2015, imposing legal requirements on companies and their lobbyists from that date. Enforcement provisions, which provided for offences and penalties for persons who did not comply with the requirements of the Act, came into effect on January 1st, 2017. The grace period was intended to give the lobbying industry time to get used to the new regulations. The provisions gave powers to Sipo to investigate possible contraventions of the law and prosecute any breaches after that date. According to the standards commission, there have been no prosecutions for carrying on lobbying activities without being registered.

The Uber Files are a cache of more than 124,000 files leaked to the Guardian and provided to the Washington-based International Consortium of Investigative Journalists, a network of reporters involving more than 100 media groups including The Irish Times, the Washington Post and Le Monde. The files span 2013-2017. So Ireland’s lobbying laws cover a key period in late 2015 when the US car-sharing company, which operates in more than 70 countries around the world, was preparing a formal submission to the Department of Transport in which it sought approval for a pilot programme in Limerick. Requirements under the new lobbying register rules were the same in the run-up to the February 2016 general election, when Uber met Kenny at the World Economic Forum in Davos and private company records claimed Fine Gael incorporated in its manifesto “sharing economy” text supplied by the company.

Not all contacts between companies and designated public officials such as ministers, advisers and civil servants must be declared on the register. Certain forms of contact are exempt. These include communications requesting factual information, or providing factual information if it is sought. Also exempt are communications sought by a State body in response to a public consultation process. So too are communications by designated public officials in respect of their work.

In addition, the system does not impose any requirement on designated public officials to register, submit returns or validate information in returns submitted by lobbyists.

The legal obligations are on those doing the lobbying, not on the lobbied.

The law still requires lobbyists to register activity for their clients that include communications on the initiation, development or modification of any public policy or programme. The same applies to communications on the preparation or amendment of any law. Still, it does not apply to engagements on the “implementation” of any policy, programme, enactment or award.

In the case of Uber’s meeting with Kenny in Switzerland, the company’s stated “asks” included “manifesto commitments”. The manifesto itself was not a legal document, rather a compendium of political promises and an expression of principles on policy issues. But corporate records leaked to the Guardian and provided to The Irish Times via the International Consortium of Investigative Journalists show Uber’s “asks” also included “approval from the ministry of transport to run a ride-sharing pilot in Limerick as proof of concept”.

The October 2015 opening of Uber’s Limerick service centre created hundreds of jobs. According to a company note for the Davos talks with Kenny, the US company believed its challenge in January 2016 was to “convert” a positive political and media reception to the Limerick investment “into regulatory reform at a time when political will is hard to come by”.

Under existing Irish laws, Uber could not introduce its service in the State, hence the company’s pressure for regulatory reform. That prompts questions about whether the Davos meeting should have been registered.

Although Uber’s note on the meeting with the taoiseach said the agenda “was provided to Kenny’s office in advance”, the company does not appear from filings on Sipo’s lobbying.ie website to have logged the Davos talks on the register.

But did a meeting in Switzerland with the taoiseach fall within scope of the law? On such questions, the lobbying.ie website is clear enough. “The act makes no distinctions regarding where the communication takes place,” said a question-and-answer reply on whether the law applies to communications outside Ireland. That statement, like others cited in this article from that website, refers to the general application of the legislation and not to any specific companies or filings.

In response to questions from The Irish Times, Uber said it had “never been Uber’s intention to lobby officials covertly”.

“Engaging with policymakers is standard practice for businesses and Uber fulfils all of its obligations to disclose its lobbying when required to do so,” the company said.

Internal Uber files outline in detail Moran’s contemporaneous accounts to the company of engagement and prospective engagements with ministers Michael Noonan, Paschal Donohoe and Frances Fitzgerald. These records also reflect Moran’s reports to his client of his dealings with then government secretary general Martin Fraser, the most senior civil servant in the State, and also with Kenny’s economic adviser Andrew McDowell and Graham Doyle, then secretary general of the Department of Transport.

In January 2016, Moran’s company Red House Hill International declared he lobbied seven people for Uber in September-December 2015. They included Donohoe, then minister for transport; his special adviser Stephen Lynam; and McDowell, Kenny’s adviser. Four Limerick City and County Council officials were also lobbied: Conn Murray; Pat Daly; Kieran Lehane and Caroline Curley.

Fitzgerald, then minister for justice, is not cited in Red House Hill’s Uber submission for the period. Still, internal files show Moran told his client in November 2015 he gave her a document “when she was over for lunch at mine”.

The official lobbying.ie website deals as follows with the question of whether an “informal conversation” with a designated official is lobbying: “The Regulation of Lobbying Act 2015 makes no distinction as to the venue or formality of a relevant communication.”

The internal files also demonstrate that Mark MacGann, Uber’s chief European lobbyist, wanted Moran to quickly organise an October meeting with Fitzgerald, her justice role being important because driver background checks were needed for the Limerick pilot proposal.

Although the files show Moran made clear his proximity to Noonan in his dealings with Uber, Red House Hill did not cite any communications for Uber with the minister for finance in its lobbying register submission for September-December 2015.

Still, Uber itself said in a separate filing to the register that it lobbied Noonan in that period, and also Donohoe, Lynam and minister for education Richard Bruton. That Uber filing on January 21st, 2016, specifically said Moran carried out lobbying on the company’s behalf related to that return.

The question of whether the client or the professional representative is supposed to log the communication is addressed in clear terms on lobbying.ie: “Where a person makes, manages or directs the making of relevant communications on behalf of a client in return for payment, he or she must register and submit a return of lobbying activities. In the return, the client must be identified. In such an instance, it would not be appropriate for the client to submit a return in place of the professional representative, as the client’s return would not make transparent the involvement of the professional in making, managing or directing the communication.”

In its May 2016 submission for January-April that year, Red House Hill’s lobbying return for Uber again logged engagements with Donohoe, McDowell, Lehane and Murray of the Limerick local authority, and also Fianna Fáil TD Timmy Dooley.

No mention was made of Noonan, who featured heavily in Moran’s exchanges with Uber during that period. Neither did Red House Hill log for that period a pre-Davos discussion on Uber with Fraser that Moran reported to his client. The same goes for Moran’s discussion on Uber with Doyle of the Department of Transport that he also reported to the company.

In a separate submission for January-April 2016, however, Red House Hill logged several discussions “for no specific client, done on a pro-bono basis” with Noonan and other ministers such as Donohoe and Fitzgerald and also Leo Varadkar and Simon Harris.

That log also cited discussions with five Department of Finance officials, including John Moran’s successor as secretary general Derek Moran, and also with Department of Arts chief Seosamh Ó hÁghmaill, Limerick council officials, Green TD Eamon Ryan, and Dooley of Fianna Fáil. The intended results were: “Keeping officials informed for better economic planning for Ireland following on my time at [the Department] of Finance”.

Later Red House Hill lobbying logs for Uber cited engagements with Shane Ross, then transport minister, as did Uber’s own submission to the register.

The Irish Times asked Moran about his company’s Uber lobbying returns and whether he had any comment on the fact that they did not specifically log engagements about the cab-hailing company with Noonan, Fitzgerald, Fraser and Doyle. “Anyone who reads the details of the returns I made can see I fully disclosed my role,” he said.

In his response, Moran cited some provisions under the legislation where contacts are exempt from disclosure. “I believe I was wholly transparent under categories of ‘lobbying’ or providing ‘factual information’, ‘implementation matters’ and others,” he said.

“If the regulator believes I made any errors at all, I am more than happy to correct them.”

He also noted that 2016 returns covered the initial trial period for the new lobbying rules, in advance of enforcement procedures coming into place in 2017. Lobbyists were given time and latitude to adjust to the new regulations that came into effect given the confusion around the rules, Moran said.

Uber told The Irish Times that Moran no longer worked for the company.

Separate Uber files point to Mark MacGann’s anticipated engagements with senior government figures. One October 2015 record quotes the head of public policy for Uber in Europe as follows: “Am in Dublin early next for meetings with Kenny, Noonan, Donohue (sic) and Varadkar.” It is unclear whether such meetings took place.

Other records cite MacGann referring to and seeking conversations with Noonan, although the details are not clear. MacGann is also quoted reporting direct communications in 2014 with Kenny’s chief of staff Mark Kennelly as the company’s frustration with the regulator intensified. But that was before the lobbying legislation took force.

Kenny did not respond to questions. According to Noonan, his view at the time was any interaction with Uber concerning transport issues were a matter for the Department of Transport. A Fine Gael source said Varadkar’s office had no recollection of any engagement with the company, formally or informally. Kennelly declined to comment but a Fine Gael source said he never raised Uber’s concerns with the Department of Transport.

Ms Fitzgerald told The Irish Times that as minister for justice she had “no line responsibility” for the matters raised in her contacts with Moran and “did not take any action” in relation to them.

Mr Donohoe’s spokesman and the Fine Gael party said, in similar statements in reply to questions, that lobbying was “an important part of the democratic process as it allows a huge diversity of issues to be raised directly with the government”.

“It allows representatives from community organisations, campaign groups and commercial organisations to make their views known to government,” they said.

“Some of these issues raised go on to influence policy, some of them don’t. But it’s an essential part of any democracy. To prevent lobbying from taking place would essentially be limiting access by anyone to their elected representatives.”

Fine Gael added that during its time in government it had ensured a “transparent lobbying regime” as the current lobbying register was introduced by a Fine Gael-led government. This required any lobbying of government officials or representatives to be disclosed.

In a statement, Uber said it continued to have “a transparent and constructive relationship” with the National Transport Authority “who have not raised any issues directly with us about how we have engaged with them or their policymakers”.

The company said that when it started more than a decade ago most laws and regulations did not enable the kind of technology-driven transport service that it provides. Between 2014 and 2016 its objective was “to work with governments to find ways to modernise or create new regulations that would be adapted to modern life,” Uber said.

This involved a “policy team” which, with outside advisers, was asked to help the company “understand the local landscape and intricacies of local regulatory regimes” as it grew rapidly to dozens of countries and thousands of cities.

“We have long championed rules and regulations that reflect changing technology and correspond with the interests of our customers and those earning on our platform,” Uber said. “The idea that this was done secretly is nonsense. We have expressed our policy positions vocally and publicly ever since our founding.”

But one thing above all is clear from the Uber Files: the picture presented in the US company’s internal company records is rather more illuminating about what was going on than lobbying register declarations.

The official logs convey nothing of the drama or the strategic thinking behind the company’s intensive efforts behind the scenes to sway people, from the taoiseach down, in its favour.

In the end the company’s efforts to force its will — via political leaders and officials — on the NTA, an independent regulator, did not bear fruit. But it was not without trying as Uber and its Irish lobbyist pulled out all the stops in a bid to break through the regulatory barrier.

The lobbying logs don’t even hint at that.